(PC) McCoy-Gordon v. Hernandez

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 DEMARREA McCOY-GORDON, No. 2:19-cv-1586 JAM KJN P

12 Plaintiff,

13 v. FINDINGS AND RECOMMENDATIONS

14 HERNANDEZ,

15 Defendant.

16

17 I. Introduction

18 Plaintiff is a state prisoner, proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C.

19 § 1983, and is proceeding in forma pauperis. On February 11, 2020, defendant filed a motion for

20 summary judgment, which is fully briefed. As discussed below, the motion should be denied.

21 II. Plaintiff’s Allegations

22 In the verified amended complaint, plaintiff alleges that defendant Hernandez refused to

23 re-locate plaintiff from cell 215, which had water covering more than half the cell and reeked of a

24 “strong smell of black mold,” despite many other cells being available. (ECF No. 13 at 2.) As a

25 result of defendant’s refusal to re-house plaintiff, plaintiff was forced to balance himself over the

26 toilet and squat to relieve himself in order to avoid slipping or getting his feet soaked, and forced

27 to inhale black mold for the duration of his stay in orientation. Plaintiff seeks declaratory and

28 monetary relief. (ECF No. 13 at 5.)

1 III. Legal Standard for Summary Judgment

2 Summary judgment is appropriate when it is demonstrated that the standard set forth in

3 Federal Rule of Civil Procedure 56 is met. “The court shall grant summary judgment if the

4 movant shows that there is no genuine dispute as to any material fact and the movant is entitled to

5 judgment as a matter of law.” Fed. R. Civ. P. 56(a).

6 Under summary judgment practice, the moving party always bears

the initial responsibility of informing the district court of the basis

7 for its motion, and identifying those portions of “the pleadings,

depositions, answers to interrogatories, and admissions on file,

8 together with the affidavits, if any,” which it believes demonstrate

the absence of a genuine issue of material fact.

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10 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting then-numbered Fed. R. Civ. P.

11 56(c)). “Where the nonmoving party bears the burden of proof at trial, the moving party need

12 only prove that there is an absence of evidence to support the non-moving party’s case.” Nursing

13 Home Pension Fund, Local 144 v. Oracle Corp. (In re Oracle Corp. Sec. Litig.), 627 F.3d 376,

14 387 (9th Cir. 2010) (citing Celotex Corp., 477 U.S. at 325); see also Fed. R. Civ. P. 56 advisory

15 committee’s notes to 2010 amendments (recognizing that “a party who does not have the trial

16 burden of production may rely on a showing that a party who does have the trial burden cannot

17 produce admissible evidence to carry its burden as to the fact”). Indeed, summary judgment

18 should be entered, after adequate time for discovery and upon motion, against a party who fails to

19 make a showing sufficient to establish the existence of an element essential to that party’s case,

20 and on which that party will bear the burden of proof at trial. Celotex Corp., 477 U.S. at 322.

21 “[A] complete failure of proof concerning an essential element of the nonmoving party’s case

22 necessarily renders all other facts immaterial.” Id. at 323.

23 Consequently, if the moving party meets its initial responsibility, the burden then shifts to

24 the opposing party to establish that a genuine issue as to any material fact actually exists. See

25 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to

26 establish the existence of such a factual dispute, the opposing party may not rely upon the

27 allegations or denials of its pleadings, but is required to tender evidence of specific facts in the

28 form of affidavits, and/or admissible discovery material in support of its contention that such a

1 dispute exists. See Fed. R. Civ. P. 56(c); Matsushita, 475 U.S. at 586 n.11. The opposing party

2 must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome

3 of the suit under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

4 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir.

5 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return

6 a verdict for the nonmoving party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436

7 (9th Cir. 1987), overruled in part on other grounds, Hollinger v. Titan Capital Corp., 914 F.2d

8 1564, 1575 (9th Cir. 1990).

9 In the endeavor to establish the existence of a factual dispute, the opposing party need not

10 establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual

11 dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at

12 trial.” T.W. Elec. Serv., 809 F.2d at 630. Thus, the “purpose of summary judgment is to ‘pierce

13 the pleadings and to assess the proof in order to see whether there is a genuine need for trial.’”

14 Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory committee’s note on 1963

15 amendments).

16 In resolving a summary judgment motion, the court examines the pleadings, depositions,

17 answers to interrogatories, and admissions on file, together with the affidavits, if any. Fed. R.

18 Civ. P. 56(c). The evidence of the opposing party is to be believed. See Anderson, 477 U.S. at

19 255. All reasonable inferences that may be drawn from the facts placed before the court must be

20 drawn in favor of the opposing party. See Matsushita, 475 U.S. at 587; Walls v. Central Costa

21 County Transit Authority, 653 F.3d 963, 966 (9th Cir. 2011). Nevertheless, inferences are not

22 drawn out of the air, and it is the opposing party’s obligation to produce a factual predicate from

23 which the inference may be drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224,

24 1244-45 (E.D. Cal. 1985), aff’d, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a

25 genuine issue, the opposing party “must do more than simply show that there is some

26 metaphysical doubt as to the material facts. . . . Where the record taken as a whole could

27 not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for

28 trial.’” Matsushita, 475 U.S. at 586 (citation omitted).

1 By contemporaneous notice provided on February 11, 2020 (ECF No. 27-2), plaintiff was

2 advised of the requirements for opposing a motion brought pursuant to Rule 56 of the Federal

3 Rules of Civil Procedure. See Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc);

4 Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988).

5 IV. Undisputed Facts (“UDF”)1

6 1. At all times relevant herein, plaintiff was an inmate in the custody of the California

7 Department of Corrections and Rehabilitation (“CDCR”); plaintiff was housed at California State

8 Prison, Sacramento (“CSP-SAC”) at the time of the alleged violation.

9 2. Non-health care inmate appeals are used for allegations concerning conditions of

10 confinement in prison.

11 3. Non-health care appeals are reviewed by the institution Appeals Office and the Office

12 of Appeals.

13 4. When an inmate submits an appeal that does not comply with regulations governing

14 the appeal process, the Appeals Coordinator may reject or “screen out” and return the appeal,

15 including the reason for the appeal’s return, and instructions on how to correct the defect, if

16 correction is possible.

17 5. The Office of Appeals keeps an electronic record of inmate appeals that proceed

18 through the third level of review. When an inmate appeal is received by the Office of Appeals, it

19 is assigned a third level tracking number, whether it is screened out or accepted for review.

20 6. When the Institutional Appeals Office receives an inmate appeal, the practice is for an

21 Appeals Coordinator to assign a log number and make an initial provisional determination of the

22 issue raised by the appeal.

23 7. Between March 19, 2019, and August 12, 2019, plaintiff did not receive a third and

24 final level of review of an inmate appeal related to the allegations raised in plaintiff’s amended

25 complaint.

26 8. This action was filed on August 12, 2019. (ECF No. 1.)

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1 For purposes of summary judgment, the undersigned finds the following facts are undisputed,

28 unless noted otherwise.

1 Appeal Log Number SAC-C-19-01390

2 9. On March 28, 2019, plaintiff signed inmate appeal log number SAC-C-19-01390, in

3 which plaintiff alleged that on March 19, 2019, he was assigned to C8-Cell 215 and the following

4 day he noticed a leak in the ceiling which caused puddles on the cell floor. (ECF No. 27-3 at 12.)

5 10. On April 3, 2019, plaintiff submitted a CDCR 22 form noting that he submitted a 502

6 regarding the unsanitary cell conditions on March 28, 2019. (ECF No. 28 at 14.) On April 5,

7 2019, staff responded that SAC-C-19-01390 was received on March 29, 2019, and assigned on

8 April 4, 2019. (Id.) Staff added: “You must be patient. The appeals unit needs time to process

9 and has 5 working days, due 5/13/19.” (ECF No. 28 at 14.)

10 11. Appeal log number SAC-C-19-01390 was assigned for first level response on April 4,

11 2019. (ECF No. 27-3 at 38; 28 at 16.) The first level appeal response is dated April 19, 2019.

12 (ECF Nos. 27-3 at 15; 28 at 21-22.) The appeal was partially granted at the first level; plaintiff’s

13 request for a work order was granted, the repairs were completed, and his request for monetary

14 compensation was denied because it is outside the scope of the 602 process. (ECF Nos. 27-3 at

15 15; 28 at 21-22.)

16 12. On April 28, 2019, plaintiff submitted a CDCR 22 form stating that about April 22,

17 2019, a maintenance worker approached plaintiff’s cell, and asked plaintiff if he would withdraw

18 his appeal SAC-C-19-01390 if the worker fixed the leak. (ECF No. 28 at 18.) Prison staff

19 responded on May 1, 2019, “your choice of what to do.” (Id.)

20 13. On May 15, 2019, plaintiff submitted a CDCR 22 form inquiring about the status of

21 his 602 regarding the flooded cell. (ECF No. 27-3 at 67; 28 at 20.) On May 17, 2019, staff

22 responded that SAC-C-19-01390 was assigned and completed; “copy attached and sent May 9,

23 2019.” (ECF No. 27-3 at 67.)

24 14. On May 20, 2019, plaintiff received the first level response which did not include the

25 return of SAC-C-19-01390.2 (ECF No. 28 at 11-12.)

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2 Defendant provides a copy of plaintiff’s May 21, 2019 CDCR 22 claiming plaintiff did not

27 receive the first level response until May 20, 2019, and would like to have his 602 returned for

second level review. (ECF No. 27-3 at 14.) Prison staff J. Hess responded that the “602 was sent

28 back to plaintiff with the first level response on May 9, 2019.” (Id.) In opposition, plaintiff filed

1 15. On May 22, 2019, plaintiff submitted a CDCR 22 form stating that “on 5/20/19 [he]

2 received a first level review response to [his] 602 # SAC-C-19-01390 which was partially

3 granted.” (ECF Nos. 27-3 at 59, 28 at 24.) Plaintiff expressed his dissatisfaction and asked that

4 his 602 be returned for second level review. (Id.) On May 22, 2019, staff responded, stating that

5 plaintiff’s 602 was sent back to plaintiff with the first level appeal response on May 9, 2019. (Id.)

6 On May 22, 2019, plaintiff requested supervisor review, objecting that the 602 was not returned;

7 rather, plaintiff only received a first level response on May 20, 2019, after inquiring about the

8 whereabouts of his 602 on the May 15, 2019 CDCR 22 form. (ECF No. 27-3 at 59.) Plaintiff

9 added that he would not be asking for the return of the 602 if it had accompanied the first level

10 review response. (Id.)

11 16. On May 23, 2019, plaintiff filed a CDCR 22 noting that he submitted a 6023 about the

12 administration withholding appeal SAC-C-19-01390. (ECF No. 28 at 25.) On May 24, 2019,

13 prison staff responded, stating the appeals office had received plaintiff’s May 23, 2019 appeal.

14 (Id.)

15 17. Plaintiff states appeal log number SAC-C-19-01390 was returned to him without the

16 proper rejection notice on June 26, 2019, August 19, 2019, August 29, 2019, and September 13,

17 2019.4 (ECF Nos. 27-3 at 65; 28 at 29.)

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a declaration confirming he received the first level response on May 20, 2019, but the response

19 did not include the original 602. (ECF No. 28 at 11.) Defendant provided no declaration from

Hess or other appeals coordinator confirming that the first level response was sent to plaintiff on

20 May 9, 2019, or attesting that the original 602 was appended to the first level response.

Defendant’s declarations are silent as to such matters. (ECF No. 27-3 at 5-7 (Vasquez Decl.); 20-

21 23 (Hendricks’ Decl.).)

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3 Plaintiff’s new 602 sought return of 602 No. SAC-C-19-01390 so plaintiff could file a request

23 for second level review. (ECF No. 28 at 26.) The 602 form reflects that prison staff rejected the

602 on June 3, 2019, but no reason is given. (ECF No. 28 at 26-27.) The numbers portion of the

24 form is blacked out; the number 1911572 is handwritten on top. This appeal is not the same as

plaintiff’s subsequent appeal No. SAC-C-19-02210. (Compare ECF No. 27-3 at 10 to ECF No.

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28 at 26.)

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4 In his opposition, plaintiff argues that prison officials further obstructed plaintiff’s attempt to

27 process his appeal at the second level by continuously returning his appeal a total of four times,

without a documented rejection notice, requiring plaintiff to seek third level intervention. (ECF

28 No. 28 at 3-5.) In his declaration, plaintiff refers to the June 3, 2019 memo bearing his

1 18. On October 21, 2019, appeal log number SAC-C-19-01390 was accepted at the

2 second level of review. (ECF Nos. 27-3 at 23, 31; 28 at 36.) On October 21, 2019, plaintiff was

3 advised that appeal log number SAC-C-19-01390 was sent to the AW BS Plant Ops Supervisor

4 for second level response. (ECF No. 28 at 36.) Plaintiff was advised that if he was dissatisfied

5 with the second level response, plaintiff had thirty days from receipt of the response to forward

6 his appeal to the third level of review. (Id.) Plaintiff was also provided the mailing address for

7 sending the request for third level review. (Id.)

8 19. On October 21, 2019, the appeals office sent plaintiff’s appeal log number SAC-C-

9 19-01390 to the AW BS Plant Ops Supervisor, asked that the appeal be assigned to staff for

10 second level response, and noted the November 12, 2019 due date. (ECF No. 27-3 at 31.)

11 20. On November 5, 2019, the warden issued a second level review response. (ECF Nos.

12 27-3 at 49-50; 28 at 38-39.) Plaintiff’s appeal was partially granted on the basis that a work order

13 was generated and completed on April 15, 2019. (ECF Nos. 27-3 at 50; 28 at 39.) The reviewer

14 noted that plaintiff’s 602 appeal “was routed to Plant Operations due to the request for a Work

15 Order.” (Id.) Plaintiff’s request for monetary compensation was denied as outside the scope of

16 the appeals process. (Id.)

17 Appeal Log number SAC-C-19-02210

18 21. On May 28, 2019, plaintiff filed inmate appeal log number SAC-C-19-02210, in

19 which plaintiff alleged that he only received a first level response in inmate appeal log number

20 SAC-C-19-01390 and did not receive the inmate appeal (CDC form 602) back. (ECF No. 27-3 at

21 10.)

22 ////

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24 handwritten notes at the top, and confirms that his handwritten notes document each day he

received a rejection. (ECF No. 28 at 12.) Defendant does not address plaintiff’s argument.

25

Hendricks declares that all inmate appeals, regardless of disposition, are assigned a log number

for tracking purposes, and that “appeals that were rejected or cancelled will be reflected in IATS

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as a single line entry. (ECF No. 27-3 at 22.) However, Hendricks did not provide a copy of the

27 IATS. (ECF No. 27-3 at 20-23.) Rather, Hendricks provided only appeals accepted on or after

March 19, 2019, and completed through August 12, 2019. (ECF No. 27-3 at 22.) In other words,

28 no record of rejected or cancelled appeals for this time frame was provided.

1 22. The appeals coordinator responded by letter dated June 3, 2019. (ECF No. 27-3 at

2 54.) The appeals coordinator noted that plaintiff’s appeal log number SAC-C-19-02210 was

3 returned to plaintiff because his previous appeal SAC-C-19-01390 was “attached as ‘Treat as

4 Original.’” (ECF No. 27-3 at 54.) The response included a copy of inmate appeal log number

5 SAC-C-19-01390 stamped “treat as original.” (ECF No. 27-3 at 32-37.)

6 The bottom of the letter provides a space for the inmate’s note. (ECF No. 27-3 at 18.)

7 Plaintiff wrote “I would like my 602 # SAC-C-19-01390 processed at the second level.” (ECF

8 Nos. 27-3 at 18, 65; 28 at 29.) Plaintiff’s writing is not dated. (Id.)

9 23. Plaintiff appealed this response to the Office of Appeals on September 20, 2019.

10 24. On October 3, 2019, the Office of Appeals screened out inmate appeal SAC-C-19-

11 02210 because plaintiff was not authorized to bypass a level and forwarded the inmate appeal to

12 CSP-SAC for processing. (ECF No. 27-3 at 9, 70; 28 at 35.) Appeal SAC-C-19-02210 was

13 forwarded to the CSP-SAC Appeals Coordinator on October 3, 2019. (ECF No. 28 at 34.)

14 25. Subsequently, plaintiff was sent an October 21, 2019 screening notice by CSP-SAC,

15 which states:

16 LEGAL, Processing of Appeals, 10/09/2019

Log Number: SAC-S-19-02210

17

(Note: Log numbers are assigned to all appeals for tracking

18 purposes. Your appeal is subject to cancellation for failure to correct

noted deficiencies.

19

The enclosed documents are being returned to you for the following

20 reasons:

21 AO Other

22 PLEASE NOTE: LOG number SAC-C-19-02210 has been given a

Treat As Original stamp and is being assigned at the SLR [second

23 level review] and is due by 11/25/19 back to the appeals unit. As

your issue with SAC-C-19-01390 has been resolved this appeal is

24 being returned with no further action.

25 (ECF No. 27-3 at 60.)5 The third level staff response box is stamped October 3, 2019 on the

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5 Plaintiff also provided a copy of the October 21, 2019 notice; in addition to crossed out and

27 illegible handwriting at the bottom, the legible handwriting reads: “I received this notice on

Thursday 10/31/19. I documented all rejection dates due to administration not doing so on

28 original.” (ECF No. 28 at 37.) This copy bears no received stamp or other indicia documenting it

1 “rejected” line. (ECF No. 27-3 at 62.)

2 V. Standards Governing Exhaustion of Administrative Remedies

3 The Prison Litigation Reform Act of 1995 (“PLRA”), 42 U.S.C. § 1997e(a), requires a

4 prisoner challenging prison conditions to exhaust available administrative remedies before filing

5 suit. McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002); 42 U.S.C. § 1997e(a) (“No action

6 shall be brought with respect to prison conditions under section 1983 of this title, or any other

7 Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such

8 administrative remedies as are available are exhausted.”). Exhaustion is a precondition to suit;

9 exhaustion during the pendency of the litigation is insufficient. McKinney, 311 F.3d at 1199-

10 1200. This requirement promotes the PLRA’s goal of efficiency by: “(1) ‘giv[ing] prisoners an

11 effective incentive to make full use of the prison grievance process’; (2) reducing prisoner suits as

12 some prisoners are ‘persuaded by the proceedings not to file an action in federal court’; and

13 (3) improving the quality of any remaining prisoner suits ‘because proper exhaustion often results

14 in the creation of an administrative record that is helpful to the court.’” Nunez v. Duncan, 591

15 F.3d 1217, 1226 (9th Cir. 2010) (quoting Woodford v. Ngo, 548 U.S. 81, 94-95 (2006)).

16 “Proper exhaustion demands compliance with an agency’s deadlines and other critical

17 procedural rules.” Woodford, 548 U.S. at 90. These rules are defined by the prison grievance

18 process itself, not by the PLRA. Jones v. Bock, 549 U.S. 199, 218 (2007). The filing of an

19 untimely grievance or appeal is not proper exhaustion. See Woodford, 548 U.S. at 83-84. “[A]

20 prisoner must ‘complete the administrative review process in accordance with the applicable

21 procedural rules, including deadlines, as a precondition to bringing suit in federal court.’” Harvey

22 v. Jordan, 605 F.3d 681, 683 (9th Cir. 2010) (quoting Marella v. Terhune, 568 F.3d 1024, 1027

23 (9th Cir. 2009)). In California, a grievance must be timely appealed through the third level of

24 review to complete the administrative review process. Harvey, 605 F.3d at 683; Cal. Code Regs.

25 tit. 15, § 3084.1(b).

26 The State of California provides its inmates and parolees the right to administratively

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28 was received by the appeals office.

1 appeal ‘‘any policy, decision, action, condition, or omission by the department or its staff that the

2 inmate or parolee can demonstrate as having a material adverse effect upon his or her health,

3 safety, or welfare.’’ Cal. Code Regs. tit. 15, § 3084.1(a). In order to exhaust available

4 administrative remedies, a prisoner must proceed through three formal levels of appeal and

5 receive a decision from the Secretary of the CDCR or his designee. Id. § 3084.1(b),

6 § 3084.7(d)(3).

7 The amount of detail in an administrative grievance necessary to properly exhaust a claim

8 is determined by the prison’s applicable grievance procedures. Jones, 549 U.S. at 218; see also

9 Sapp v. Kimbrell, 623 F.3d 813, 824 (9th Cir. 2010) (“To provide adequate notice, the prisoner

10 need only provide the level of detail required by the prison’s regulations”). California prisoners

11 are required to lodge their administrative complaint on a CDCR-602 form (or a CDCR-602 HC

12 form for a health-care matter). Cal. Code Regs. tit. 15, § 3084.2(a)(3-4). An inmate has thirty

13 calendar days to submit an appeal from the occurrence of the event or decision being appealed, or

14 “upon first having knowledge of the action or decision being appealed.” Cal. Code Regs. tit. 15,

15 § 3084.8(b).

16 Prison officials have thirty working days from the date of receipt of an inmate’s grievance

17 to issue a first level response; thirty working days from the date of receipt of an inmate’s appeal

18 of a first level decision to issue a second level response; and sixty working days from the date of

19 receipt of an inmate’s appeal of a second level decision to issue a third level response. 15 Cal.

20 Code Regs. § 3084.8(c). Deviation from these time limits is expressly authorized in certain

21 circumstances, including the “‘[u]navailability of the inmate or parolee, or staff, or witnesses,’

22 and where “[t]he complexity of the decision, action or policy require[s] additional research.’” Id.

23 at § 3084.8(d)(1), (2). Under Section 3084.8(e), “[e]xcept for the third level, if an exceptional

24 delay prevents completion of the review within specified time limits, the appellant, within the

25 time limits provided [above], shall be provided an explanation of the reasons for the delay and the

26 estimated completion date.” Id. at § 3084.8(e).

27 An inmate must exhaust available remedies, but is not required to exhaust unavailable

28 remedies. Albino v. Baca, 747 F.3d 1162, 1171 (9th Cir. 2014) (en banc). “To be available, a

1 remedy must be available ‘as a practical matter’; it must be ‘capable of use; at hand.’” Id.

2 (quoting Brown v. Valoff, 422 F.3d 926, 936-37 (9th Cir. 2005)). “Accordingly, an inmate is

3 required to exhaust those, but only those, grievance procedures that are ‘capable of use’ to obtain

4 ‘some relief for the action complained of.’” Ross v. Blake, 136 S. Ct. 1850, 1858 (2016) (quoting

5 Booth v. Churner, 532 U.S. 731, 738 (2001)).

6 Failure to exhaust under the PLRA is “an affirmative defense the defendant must plead

7 and prove.” Jones, 549 U.S. at 204. It is the defendant’s burden to prove that there was an

8 available administrative remedy, and that the prisoner failed to exhaust that remedy. Albino, 747

9 F.3d at 1172. In most circumstances, the appropriate procedural mechanism is a motion for

10 summary judgment under Federal Rule of Civil Procedure 56, with the defendant attaching the

11 evidence necessary to demonstrate a failure to exhaust. Albino, 747 F.3d at 1166.

12 VI. Has Defendant Met Initial Burden?

13 Here, it is undisputed that: (a) CDCR has a grievance process; (b) plaintiff’s inmate

14 appeal log number SAC-C-19-01390 would have exhausted plaintiff’s instant claims; and

15 (c) plaintiff did not receive a third level review on the merits of his claims before filing this

16 action.6 Such undisputed facts establish that administrative remedies were available at CSP-SAC,

17 and plaintiff did not receive a third level review on the merits of his claims prior to filing this

18 action. Woodford, 548 U.S. at 90-91 (an untimely appeal will not satisfy the exhaustion

19 requirement). Thus, the burden shifts to plaintiff to come forward with evidence “showing that

20 there is something in his particular case that made the existing and generally available

21 administrative remedies effectively unavailable to him.” Albino, 747 F.3d at 1172.

22 VII. Were Administrative Remedies Rendered Unavailable?

23 In his opposition, plaintiff argues that prison staff obstructed his efforts to exhaust his

24 administrative remedies by failing to timely return plaintiff’s original appeal and “making

25 plaintiff file a separate appeal in order to have the original appeal returned.” (ECF No. 28 at 2.)

26 By the time the original appeal was returned, the May 13, 2019 first level due date had expired.

27

6 “[A] cancellation or rejection decision does not exhaust administrative remedies.” Cal. Code of

28 Regs. tit. 15 § 3084.1(b).

1 Further, prison officials obstructed plaintiff’s attempt to appeal to the second level by repeatedly

2 returning his appeal SAC-C-19-01390 four times without appropriate rejection documentation.

3 Plaintiff was required to seek intervention by the third level in order to get his appeal processed at

4 the second level. Finally, plaintiff contends that the first and second level appeal rulings

5 “partially granted” plaintiff’s appeals, because a work order was granted, thus exhausting

6 plaintiff’s remedies because no monetary compensation was available. (ECF No. 28 at 7.)

7 Defendant contends that plaintiff failed to present any competent evidence that he

8 properly exhausted his administrative remedies prior to filing this action. Defendant argues that

9 plaintiff received a first level response on May 9, 2019, which he appealed, but “rather than await

10 a decision from the second level, prematurely filed suit before receiving a response at the second

11 level of review.” (ECF No. 31 at 2.) Plaintiff’s inmate appeal was still pending at the time he

12 filed this action, and he fails to show he is entitled to any of the limited exceptions to the PLRA.

13 Moreover, even if screening out plaintiff’s inmate appeal log number SAC-C-19-02210 could

14 serve to exhaust plaintiff’s claims, such appeal was screened on October 21, 2019, after plaintiff

15 filed this action in August. (ECF No. 31 at 3.)

16 Following a discussion of the standards governing this issue, the undersigned addresses

17 the parties’ arguments below.

18 A. Governing Standards

19 The Supreme Court has reiterated that “all inmates must now exhaust all available

20 remedies,” and there is no “special circumstances” exception to the PLRA’s rule of exhaustion.

21 Ross, 136 S. Ct. at 1858. That said, the PLRA does provide one textual exception by its use of

22 the term “available,” meaning “‘capable of use for the accomplishment of a purpose,’ and that

23 which ‘is accessible or may be obtained.’” Id., quoting Booth, 532 U.S. at 737-38. In Ross, the

24 Supreme Court found “three kinds of circumstances in which an administrative remedy, although

25 officially on the books, is not capable of use to obtain relief.” 136 S. Ct. at 1858-59. These

26 circumstances include: “(1) when the administrative procedure ‘operates as a simple dead end’

27 because officers are ‘unable or consistently unwilling to provide any relief to aggrieved inmates’;

28 (2) when the administrative scheme is ‘so opaque that it becomes, practically speaking, incapable

1 of use’ because ‘no ordinary prisoner can discern or navigate it’; and (3) when prison

2 administrators ‘thwart inmates from taking advantage of a grievance process through

3 machination, misrepresentation, or intimidation.’” Andres v. Marshall, 867 F.3d 1076, 1078 (9th

4 Cir. 2017) (quoting Ross, 136 S. Ct. at 1858-59). However, “we expect that these circumstances

5 will not often arise.” Ross, 136 S. Ct. at 1859 (citation omitted).

6 The Ninth Circuit has characterized the list in Ross as “non-exhaustive.” Andres, 867

7 F.3d at 1078. Thus, other circumstances may render administrative remedies unavailable,

8 including the failure of prison officials to properly process a prisoner’s grievance, as cited by the

9 Circuit in Andres:

10 Brown v. Valoff, 422 F.3d 926, 943 n.18 (9th Cir. 2005) (“Delay in

responding to a grievance, particularly a time-sensitive one, may

11 demonstrate that no administrative process is in fact available.”); cf.

also Robinson v. Superintendent Rockview SCI, 831 F.3d 148, 153

12 (3d Cir. 2016) (joining other circuits in holding “a prison’s failure to

timely respond to an inmate’s properly filed grievance renders its

13 remedies ‘unavailable’ under the PLRA”); Boyd v. Corr. Corp. of

Am., 380 F.3d 989, 996 (6th Cir. 2004) (“Following the lead of the

14 four other circuits that have considered this issue, we conclude that

administrative remedies are exhausted when prison officials fail to

15 timely respond to a properly filed grievance.”); Jernigan v. Stuchell,

304 F.3d 1030, 1032 (10th Cir. 2002) (“[T]he failure to respond to a

16 grievance within the time limits contained in the grievance policy

renders an administrative remedy unavailable.”); Lewis v.

17 Washington, 300 F.3d 829, 833 (7th Cir. 2002) (“[W]e refuse to

interpret the PLRA so narrowly as to permit prison officials to exploit

18 the exhaustion requirement through indefinite delay in responding to

grievances.” (alterations and internal quotation marks omitted)).

19

20 Andres, 867 F.3d at 1079. A remedy also may be unavailable if prison officials reject or cancel

21 an appeal “for reasons inconsistent with or unsupported by applicable regulations.” Sapp v.

22 Kimbrell, 623 F.3d 813, 824 (9th Cir. 2010).

23 B. Discussion

24 It is undisputed that appeal SAC-C-19-01390, signed by plaintiff on March 28, 2019, is

25 the appeal that would exhaust the instant claims. Although the first level appeal response is dated

26 April 19, 2019, plaintiff provided evidence that he did not receive the first level response until

27 May 20, 2019, which did not include the return of appeal SAC-C-19-01390. Defendant failed to

28 rebut such evidence. Thus, prison staff failed to meet the initial thirty-day deadline in processing

1 plaintiff’s appeal SAC-C-19-01390.

2 Such initial delay, while concerning, is insufficient, standing alone, to support a finding

3 that the administrative remedies were unavailable. However, the next period of delay is

4 problematic. Plaintiff received the first level appeal response on May 20, 2019. But despite

5 plaintiff’s multiple efforts to submit his request for second level review, prison officials did not

6 explain the delay. Under Section 3084.8(e), “[e]xcept for the third level, if an exceptional delay

7 prevents completion of the review within specified time limits, the appellant, within the time

8 limits provided [above], shall be provided an explanation of the reasons for the delay and the

9 estimated completion date.” Id. at § 3084.8(e). On October 21, 2019, plaintiff was sent a

10 screening notice that his inmate appeal log number SAC-C-19-01390 was given a “treat as

11 original” stamp and was assigned to the second level of review, and that no further action would

12 be taken on appeal SAC-C-19-02210, but there was no explanation for the delay. In the

13 November 5, 2019 second level appeal response there was no explanation for the delay.

14 Viewing the evidence in the light most favorable to plaintiff, his appeal SAC-C-19-01390

15 was returned to plaintiff four separate times without any documentation explaining why.

16 Defendant did not rebut such evidence. The second level response did not issue until November

17 5, 2019, almost seven months after the April 19, 2019 first level response. Defendant did not

18 address such delay. (ECF No. 31 at 2.) Appeals Coordinator Hendricks and Acting Chief of the

19 Office of Appeals Vasquez also did not address such delay. (ECF No. 27-3 at 7, 20.)

20 On this record, a trier of fact could reasonably conclude from the evidence that the

21 grievance process was effectively unavailable to plaintiff because prison staff did not properly

22 process plaintiff’s request for second level review. See Andres, 867 F.3d at 1078-79 (finding that

23 “[w]hen prison officials improperly fail to process a prisoner’s grievance,” the grievance process

24 is unavailable); Karas v. Marciano, 2017 WL 6816858, at *4 (C.D. Cal. Nov. 13, 2017) (“When a

25 prisoner submits a [grievance] but never receives a response thereto, the administrative remedies

26 are rendered effectively unavailable by defendants’ actions.” (citation and internal quotations

27 omitted).)

28 Defendant focuses on plaintiff’s failure to obtain a third level review prior to filing this

1 action, and argues plaintiff should have waited for a response from the second level of review.

2 However, exhaustion is measured at the time the action is filed. Andres, 867 F.3d at 1079. Here,

3 the action was filed on August 12, 2019. Plaintiff submitted his request for second level review,

4 but it was returned to him on June 26, 2019, without the appropriate rejection documentation.

5 Thus, absent evidence not presented by defendant, at the time of the filing of this action,

6 administrative remedies were rendered unavailable to plaintiff by the improper handling of

7 plaintiff’s request for second level review. See Andres, 867 F.3d at 1079; see also Rupe v. Beard,

8 2013 WL 2458398, *16 (E.D. Cal. 2013) (“after an inmate has waited a reasonable period of time

9 and has received no response or notice of delay, the failure by prison officials to abide by inmate-

10 grievance regulations must excuse the inmate’s failure to exhaust; otherwise, prison officials

11 could indefinitely delay inmates from pursuing legal remedies simply by ignoring all inmate

12 appeals.”) Indeed, plaintiff had already sustained an unreasonable delay in obtaining his first

13 level review response, further supporting his belief that his administrative remedies were no

14 longer available at the time he filed the instant action. The fact that plaintiff continued to pursue

15 administrative remedies does not alter this court’s analysis under Andres. 867 F.3d at 1079;

16 Padilla v. Hasley, 2017 WL 1927874 (C.D. Cal. Mar. 9, 2017) (“That Plaintiff doggedly

17 continued to pursue his Free Exercise grievance after filing suit does not mean he lacked a

18 reasonable, good faith belief that administrative remedies were unavailable.”)7

19 For all of the above reasons, the undersigned finds that plaintiff’s efforts to exhaust his

20 claim was obstructed by prison staff, both by failing to timely return plaintiff’s initial appeal, and

21 then by returning plaintiff’s requests for second level review on multiple occasions, rendering the

22 appeals process unavailable. Because defendant failed to rebut plaintiff’s evidence, the motion

23 for summary judgment should be denied.

24 ////

25 ////

26

27 7 Indeed, in plaintiff’s verified original complaint, plaintiff states his belief that prison staff were

withholding his grievance to prevent him from pursuing this action. (ECF No. 1 at 10.)

28

1 VIII. Was Further Relief Available?

2 In the alternative, plaintiff contends that the first and second level appeal rulings “partially

3 granted” plaintiff’s appeals, because a work order was granted, thus exhausting plaintiff’s

4 remedies because no monetary compensation was available. (ECF No. 28 at 7-8.) Defendant

5 argues that plaintiff must exhaust administrative remedies even if the relief sought by the prisoner

6 is not available. (ECF No. 27-1 at 4.)

7 “The obligation to exhaust ‘available’ remedies persists as long as some remedy remains

8 ‘available.’ Once that is no longer the case, then there are no ‘remedies … available,’ and the

9 prisoner need not further pursue the grievance.” Brown v. Valoff, 422 F.3d 926, 935 (9th Cir.

10 2005) (citing Booth v. Churner, 532 U.S. 731, 739 (2001)). “Once an agency has granted some

11 relief and explained that no other relief is available, ‘the administrative process has not been

12 obstructed. It has been exhausted.’” Brown, 422 F.3d at 936, quoting Jasch v. Potter, 302 F.3d

13 1092, 1096 (9th Cir. 2002).

14 The record reflects that in response to plaintiff’s appeal, on April 15, 2019, the roof above

15 plaintiff’s cell was “inspected and found to have some deficiencies in the membrane.” (ECF No.

16 28 at 21.) As plaintiff had requested, a work order was generated, and necessary repairs were

17 completed. (Id.) In the first level review response, the reviewer noted that plaintiff’s request for

18 a work order was granted, and denied plaintiff’s request for monetary compensation as it was

19 outside the scope of the appeals process. The response identified no additional relief plaintiff

20 could obtain, and did not inform plaintiff that in order to exhaust his administrative remedies, he

21 must pursue his grievances through the third level of review. (ECF No. 27-3 at 27.)

22 Defendant identified no other relief plaintiff could have obtained through the grievance

23 process. Accordingly, defendant’s motion should be denied.

24 IX. Plaintiff’s Cross-Motion for Summary Judgment

25 Plaintiff’s opposition is styled, “Plaintiff’s Opposition to Defendants Motion for Summary

26 Judgment and Plaintiff’s Cross Motion for Summary Judgment.” (ECF No. 28 at 1.) In his

27 notice to defendants, plaintiff claims that his opposition is accompanied by his cross-motion for

28 summary judgment sua sponte. (ECF No. 28 at 2.) In his prayer for relief, plaintiff contends that

wOASe 2 LYOUT YM EAINTTING IN EMU OO POO eA OV

1 | his cross-motion “should be granted as there are genuine issues of material fact to be resolved.”

2 | (ECF No. 28 at 9.)

3 The authority to grant summary judgment sua sponte was made explicit in the current

4 | version of Rule 56, effective December 2010. Albino v. Baca, 747 F.3d 1162, 1176-77 (9th Cir.

5 2014) (citing Fed. R. Civ. P. 56(f)). “[W]here the party moving for summary judgment has had a

6 | full and fair opportunity to prove its case, but has not succeeded in doing so, a court may enter

7 || summary judgment sua sponte for the nonmoving party.” Albino, 747 F.3d at 1176 (citing Cool

8 || Fuel, Inc. v. Connett, 685 F.2d 309, 311 (9th Cir.1982)).

9 Plaintiff did not provide legal authorities or any argument to support his request for sua

10 | sponte summary judgment. On this record, the undersigned declines to recommend that plaintiff

11 | be granted sua sponte summary judgment on the issue of exhaustion.

12 | X. Conclusion

13 Accordingly, IT IS HEREBY RECOMMENDED that:

14 1. Defendant’s motion for summary judgment (ECF No. 27) be denied; and

15 2. This action be referred back to the undersigned for further scheduling.

16 These findings and recommendations are submitted to the United States District Judge

17 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen days

18 | after being served with these findings and recommendations, any party may file written

19 | objections with the court and serve a copy on all parties. Such a document should be captioned

20 | “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the

21 | objections shall be filed and served within fourteen days after service of the objections. The

22 | parties are advised that failure to file objections within the specified time may waive the right to

23 || appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991).

24 | Dated: April 30, 2020

Foci) Aharon

26 KENDALL J. NE

meco1586.ms}.fte UNITED STATES MAGISTRATE JUDGE

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